When metadata may contain relevant information, Canadian courts may well order its production. InLaushway v. Messervey  N.S.J. No. 107, the court upheld a production order that compelled the plaintiff to produce his computer so that it could be forensically analyzed. The Court of Appeal also found that there was nothing in the Nova Scotia Rules that limited the disclosure of metadata. Metadata was producible and presumed to be “electronic information”.
As for the competing privacy rights of the defendant, the Court of Appeal found that they were protected by the terms and conditions of the production order. That order contained specific directions as to matters that were to be excluded from the forensic expert’s report. The court was satisfied that the metadata that showed the plaintiff’s active use of the computer (the issue in the litigation) could be compiled while protecting any private information and distinguishing any third-party use of the computer.
It is encouraging to see Canadian courts balancing litigants’ competing interests in a way that permits proportionate disclosure while also protecting privacy interests.